Unauthorized Spending: When Zombies Infect Congress’ Purse

To fund all the programs and agencies of the federal government, Congress must each year vote to “appropriate” the required money so that Congressional appropriators can divvy it up to the proper places. Done correctly, this is a two-step process, beginning with “authorizations” for programs and their funding, and completed with the passage of a regular appropriations bill, which formally assigns the money for use. The general idea is that the plan for spending money should be in place before the actual spending happens.

Introduction
Unfortunately, that first step has been too frequently forgotten in recent years. In 2016, Congress spent $310 billion on over 250 agencies and programs that were no longer authorized – and more than a quarter of all discretionary spending over the last decade has lacked authorization! This is far removed from even just 30 years ago when unauthorized programs represented only 8.3 percent of the discretionary budget.

Most of this spending occurs for programs whose authorizations Congress failed to renew through a reauthorization bill, but some were never authorized to begin with. When Congress sidesteps the debate process on reauthorizing spending programs, it makes waste reform more difficult, and tosses to the curb one of the primary checks on runaway spending.

Unauthorized Programs: Driving Without a License?
There are two types of authorizations. The first type usually creates a federal agency, establishes a program, or prescribes some kind of action. It also says whether those functions continue indefinitely, or only for a specific period, and may give an agency the authority to disburse federal funds in the form of direct spending. Spending that is “direct” does not have to be voted on every year, and continues based on the law that put it in place. The second type of authorization allows the appropriation of funds (discretionary spending) to carry out the function outlined in the enabling statute. “Discretionary” spending must be voted on every year. These authorizations may set a specific dollar amount, or allow the appropriation of “such sums as may be necessary,” and may be annual, multiyear, or permanent.

In an effort to avoid appropriations being delayed, in 1837, the House began the practice of authorizing expenditures and enacting appropriations in two separate processes. By getting the issues likely to cause partisan gridlock resolved first, Congress could avoid a situation where funding for important programs is held hostage to the debate. Soon after, both the House and the Senate established committees for authorizing and appropriating funds.

Of course, there are many other good reasons to separate appropriations from authorizations. Congress might vote to authorize trillions in spending, but if the economy takes a turn for the worse, and revenues are expected to be lower, they have the option to appropriate fewer dollars. With two bills that Congress must pass to spend your money, there is more space for a healthy debate on what we can afford, helping create a more accountable fiscal policy that would keep deficits and debt from spiraling out of control.

The Problem:
Every federal agency is supposed to operate under congressional authorization. It is the set of rules that define the priorities and activities of the government. When they expire, it’s a chance to reconsider an agency’s mission, modernize, or end it if applicable, and impose some accountability on what could otherwise become multi-billion-dollar black hole of spending. On average, over the past decade, about one-fourth of total discretionary appropriations were provided for programs and activities whose explicit authorizations of appropriations had expired. Indeed, many of those appropriations were for programs whose authorizations had expired over a decade ago. Even vital agencies have been operating without proper authorization. The FBI, DEA, and ATF have not been reauthorized by Congress since 2009. The State Department, responsible for maintaining important diplomatic ties, hasn’t been reauthorized since 2003. The Federal Election Commission has been operating without authorization since 1981!

Sometimes, lawmakers avoid authorization procedures fearful that it will lead to a debate too messy to finish in a timely manner. But in most cases, Congress simply believes it isn’t worth their time to burden themselves with the reauthorization process because many of the agencies operating without license have been doing so for so long already, especially the numerous, obscure (though important) agencies. The R Street Institute’s Kevin Kosar notes that:

“There’s a lot of other stuff that’s not inherently political on the CBO’s [unauthorized] list. Stuff where you look and say this is just a pet project or this seems like God, mom and apple pie…Why would you not reauthorize that? The answer is you don’t have to. If you don’t have to, it doesn’t get done because nobody polices it.”

Sadly, Congress continues to sidestep its own budgeting process, often simply voting to waive the rules that prevent appropriation of money to unauthorized programs, and for lawmakers, the consequences for doing so are practically nonexistent. The courts have repeatedly ruled that appropriations without authorization are not illegal. In just a decade, unauthorized appropriations have doubled, and another score of authorizations are set to expire soon, adding billions more to the growing pile of unauthorized spending. It’s time for politicians to begin to look for serious solutions to meaningfully address this problem.

Where Do We Go from Here?
Unauthorized appropriations occupy an increasing share of spending every year because Congress chooses not to follow their own rules. Any solution that seriously tackles these problems must address the mountain of programs with expired authorizations that currently receive funding, and reform the process to ensure that kind of spending stops going forward.

In 2016, Congresswoman Cathy McMorris Rodgers introduced the Unauthorized Spending Accountability Act (USA Act), which uses a combination of sunset provisions and a rolling sequester to gradually reduce the amount of unauthorized spending that would occur without changes to current law. Sunset provisions mandate that, unless specifically reauthorized, programs be terminated after a set number of years. Sequesters are automatic spending reductions at a set level, usually triggered when a rule is violated, or some related legislation is not passed.

Under the USA Act, all unauthorized programs would be subject to a 10 percent funding reduction in the first year after expiration, and a 15 percent reduction the second and third years, after which the program would be sunset. If Congress reauthorizes the program at any time during the sequester window, the sunset clauses and funding reductions are taken away, allowing it to continue with full funding. The 3-year path to sunset would be triggered for any program that is unauthorized after the enactment of the bill, and would require that new reauthorizations include a sunset provision. It would also establish a commission that would outline an authorization schedule for all programs and agencies, review those programs, and assist in finding cuts elsewhere in the budget.

Other proposed reforms include the Spending Control Act of 2004, a project of the Bush administration’s efforts to reduce excess appropriations due to expired authorizations, and the “Pork-Barrel Reduction Act”, introduced in early 2006 by Senator John McCain. While neither garnered enough votes to pass, both highlighted the need for budgetary reform – a need all the more pressing today. Without reform, these zombie programs are projected to infect even more of Congress’s purse, preventing measured decisions on where funding is most needed, and spending taxpayers’ money inefficiently.